McKinnon v Secretary Department of Treasury

[2006] HCATrans 239

[2006] HCATrans 239

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S52 of 2006

B e t w e e n -

MICHAEL McKINNON

Appellant

and

SECRETARY DEPARTMENT OF TREASURY

Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 18 MAY 2006, AT 10.06 AM

Copyright in the High Court of Australia

MR J.E. GRIFFITHS, SC:   If the Court pleases, I appear with my learned friends, MR J.K. KIRK and MR T.J. BRENNAN, for the appellant.  (instructed by Corrs Chambers Westgarth)

MR R.R.S. TRACEY, QC:   If the Court pleases, I appear with my learned friend, MS M.F.J.  CAMPBELL for the respondent.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Mr Tracey and Dr Griffiths, there is an application by the Australian Press Council seeking to appear as amicus curiae on the basis of written submissions.  Is that opposed?

MR TRACEY:   It is opposed, your Honours.  I can state the reasons simply.  The principles are those that appear in Levy v Victoria 189 CLR 579 at 604 in the judgment of Sir Gerard Brennan where his Honour said that the Court will not grant an application of this kind unless it is persuaded that the submissions will assist it “in a way in which the Court would not otherwise have been assisted” and that the Court must be satisfied that the assistance would be of a kind that would not be provided by the parties.

In our submission, the submissions that have been prepared and are proposed to be presented to the Court and considered by it bear a remarkable similarity to the submissions that are before the Court in writing on behalf of the appellant and, more importantly, there is no reason to induce the Court to believe that it will not be provided with the complete assistance that it would need in a matter such as this from the parties appearing before it.  It is for that reason, if the Court pleases, that the application is opposed.

GLEESON CJ:   Thank you.  What is your attitude, Dr Griffiths?

MR GRIFFITHS:   We consent to the application, your Honour.

GLEESON CJ:   Thank you.  Yes, we will grant the leave that is sought.  Now, there is a summons relating to a matter of confidentiality.

MR TRACEY:   Yes, your Honour. That deals with the contents of volume 3 of the appeal book and that volume contains material that was heard pursuant to section 58C of the Freedom of Information Act in private session before the Tribunal.

KIRBY J:   This is agreed to, is it not?

MR TRACEY:   It is not opposed, as we understand it.

GLEESON CJ:   There may be something I have misunderstood about it, but some of the material in respect of which this order for confidentiality is sought seem to be proceedings in Parliament or a committee of the Senate.  Were those proceedings confidential?

MR TRACEY:   The position as we understand it is, no, your Honour, but it was presented to the Tribunal in the course of a closed session.

GLEESON CJ:   I was just struck by the oddity of making an order for confidentiality in relation to a transcript of some proceedings in Parliament.

MR TRACEY:   Yes.

KIRBY J:   It is 100 pages, I think, from 835 to 948, or thereabouts – 946.

MR TRACEY:   Yes.  All I can tell the Court is that ‑ ‑ ‑

KIRBY J:   Are you trying to keep the proceedings in Parliament confidential now?

MR TRACEY:   Certainly not, your Honour.  All that we are seeking to do is to maintain the confidence of the hearing insofar as it was in private session.

GLEESON CJ:   I wonder if the parties would like to reconsider that particular aspect of the matter.

MR TRACEY:   I understand that, your Honour.

GLEESON CJ:   Making orders about confidentiality is one thing; making orders about confidentiality in relation to Hansard is another.

MR TRACEY:   Yes, your Honour.  In fact, as far as we are concerned, I think I can say in running that we would not wish the confidentiality order to extend to volume 3 insofar as it contains a record of parliamentary debate.

HAYNE J:   I think it may be necessary to give rather closer attention to it, Mr Tracey.  The question for us is not what happened below; it is whether this Court makes an order for confidentiality and that determines what binds other people, binds them in the sense that disobedience leads to rather serious consequences.  Orders for confidentiality are not to be made, at least, I speak only for myself, save on a clear basis.

MR TRACEY:   Yes, your Honour. The clear basis is that under section 58C of the Act there is a statutory requirement that there be a closed session when certain matters, including the matters that are contained in volume 3, are dealt with by the Tribunal. It is perhaps coincidental that it was in the course of such a hearing that the parliamentary debates were referred to but the foundation for the application is to maintain the statutory requirement.

GLEESON CJ:   All that means is that you and your opponent perhaps need to consider a little more carefully the precise form of the order that you want us to make.

MR TRACEY:   We will do that.

GLEESON CJ:   Perhaps it is a matter you can come back to.  Nothing, I presume, that is likely to be said in the course of argument this morning is going to raise any problems in relation to this.

MR TRACEY:   No, your Honour.

GLEESON CJ:   All right.  At some stage before argument today concludes the parties could revisit the question of this summons that was filed on 12 May and the precise form of the order that is sought.

MR TRACEY:   Yes, your Honour.

GLEESON CJ:   Yes, Dr Griffiths.

MR GRIFFITHS:   Thank you, your Honour.  Your Honours, in paragraph 1 of the respondent’s outline of submissions our learned friends have stated their assessment of the fundamental question for determination by the Court in these proceedings.   It is:

Whether on its proper construction subsection 58(5) of the FOI Act requires the Administrative Appeals Tribunal (the Tribunal) to take into account and balance public interest considerations favouring disclosure of a document when determining whether reasonable grounds exist for a claim that disclosure would be contrary to the public interest. 

We are content to accept that formulation as an accurate description of the cental issue for determination.  It is implicit in that statement, we would add, that our learned friends accept that Justice Downes in the Administrative Appeals Tribunal did not take into account and balance public interest considerations in performing his review function under section 58(5). 

The grounds of appeal, your Honours, are set out in volume 2 of the appeal book at page 1143 and 1144. Your Honours see that there are four grounds of appeal. Those numbered 2, 3 and 5 each raise for determination the proper construction of section 58(5). We see the determination of the question as summarised by our learned friends in paragraph 1 of their submissions as resolving each of those three grounds of appeal. The final ground of appeal, which is No 5, was inserted as a defensive measure. We understand, your Honours, that no point is now taken by the respondents as to whether any of the relevant matters raised questions of law and for that reason paragraph 5 in the grounds of appeal is now moot and we do not press it.

Your Honours, what I was proposing to do is as follows.  First, take the Court to the key relevant provisions of the relevant legislation, the Freedom of Information Act.  Secondly, take the Court briefly to the ministerial certificates and the schedules annexed thereto.  Thirdly, and briefly, I will outline the evidence which was before the Administrative Appeals Tribunal on the relevant question and I will do that primarily by reference to our written submissions.  I will then outline the approach and findings of Justice Downes in the Administrative Appeals Tribunal, again primarily by reference to our written submissions, and undertake a similar task in respect of the reasons of the majority of the Full Court and Justice Conti.  Finally, I will state why, in our respectful submission, the appellant’s construction of section 58(5) should prevail.

Could I take your Honours then to the Freedom of Information Act and rather than go through it relevant paragraph by paragraph from the beginning, could I ask the Court to go immediately to Part VI.

KIRBY J:   You are not going to start with the object?

MR GRIFFITHS:   I am coming back to the objects, your Honour, and I will come back to the long title as well, but if I could just ask the Court to focus on the relevant context in which the review provisions arise.  Your Honours see that Part VI deals with review of decisions.  Your Honours see in section 55(1) that the Administrative Appeals Tribunal, in effect, has jurisdiction to deal with:

an application . . . for review of:

(a)a decision refusing to grant access to a document in accordance with a request –

That is a jurisdiction which can only be exercised after an internal review procedure has been taken.

KIRBY J:   We have Reprint No 5 which was issued in March 2004.  Is that the correct reprint with which we should be working?

MR GRIFFITHS:   Reprint on 1 March 2004?

KIRBY J:   Yes.

MR GRIFFITHS:   It is Reprint No 6 according to my ‑ ‑ ‑

KIRBY J:   I am sorry, yes, you are right.  It is Reprint 6.  That is the correct one?

MR GRIFFITHS:   Yes, that is the one that I am using.  That is the correct version, your Honour.  Then if I can ask the Court to go to section 58, section 58(1) provides that:

Subject to this section –

and that is an important qualification –

in proceedings under this Part, the Tribunal has power, in addition to any other power, to review any decision that has been made by an agency or Minister in respect of the request and to decide any matter in relation to the request that, under this Act, could have been or could be decided by an agency or Minister, and any decision of the Tribunal under this section has the same effect as a decision of the agency or Minister.

That, I pause to interpolate, is the conferral of the standard jurisdiction on the AAT to review a decision and determine what is the correct or preferable decision.  It would apply, for example, to an application that is made under section 55(1), to which I have just taken the Court.  It is, however, subject to other provisions in the section, including subsection (3), which is of some importance:

Where there is in force in respect of a document a certificate under section 33, 33A, 34, 35 or 36, the powers of the Tribunal do not extend to reviewing the decision to give the certificate, but the Tribunal, constituted in accordance with section 58B, may determine such a question in relation to that certificate as is provided for in whichever of subsections (4), (5) and (5A) applies in relation to that certificate. 

Subsection (3) clearly modifies (1) and telegraphs that the Tribunal’s function in a review involving a certificate is a narrower review than would be the case under subsection (1). 

GLEESON CJ:   Is that expression “reviewing the decision” in subsection (3) a shorthand expression for the power granted by subsection (1)?  In other words, is it a shorthand way of saying review a decision and decide any matter that could have been decided by the agency or Minister?

MR GRIFFITHS:   Yes, I think the reference to the decision to give the certificate, your Honour, is not a reference back to subsection (1) at all, but I may have misunderstood.

GLEESON CJ:   No, is the expression “reviewing a decision” in (3) a shorthand way of describing the kind of review that goes on under (1)?

MR GRIFFITHS:   Indeed – if your Honour is referring to 55(1), yes, indeed. 

GLEESON CJ:   Yes.

MR GRIFFITHS:   Your Honours will note with subsection (3) the particular reference to the Tribunal being specially constituted in accordance with section 58B.  I will come back and ‑ ‑ ‑

KIRBY J:   Where is that?

MR GRIFFITHS:   It is in subsection (3), your Honour.  The Tribunal in a certificate case conducts a review but as constituted in accordance with section 58B.  That is one of the special provisions ‑ ‑ ‑

KIRBY J:   That is the presidential members, is it?

MR GRIFFITHS:   That is the presidential members.  Section 58B provides in effect that in performing this special review role, the Tribunal is to be constituted by either one or three presidential members.

KIRBY J:   Are the presidential members all persons who are or have been federal judges or judges?

MR GRIFFITHS:   No, not all.  Under the Administrative Appeals Tribunal Act, “presidential members” are defined in section 4 as meaning:

the President, a member who is a Judge or a Deputy President.

They are all the most senior members of the Administrative Appeals Tribunal.

KIRBY J:   Many of them are judges or they used to be.  I think Mr Hall was a presidential member but not a judge.

MR GRIFFITHS:   That is correct.  He was originally a senior member, and indeed Mr Todd was in a similar category.  They are the most senior members of the Tribunal.  Can I just pause, since this matter has been raised, that the requirement of the special constitution of the Administrative Appeals Tribunal is a hangover from the period when the Freedom of Information Act was first enacted in 1982 when the jurisdiction to review conclusive certificates was not conferred upon the Administrative Appeals Tribunal at all but was conferred upon a specially established body called the Document Review Tribunal.  I will come back and deal with this at greater length in due course.  But under the Freedom of Information Act as it was originally enacted – and if your Honours have a copy of a folder of the appellant’s supplementary materials handy, we have extracted some relevant materials and have included, your Honours will see, behind tab 10 a note on the legislative history which deals with the matter that Justice Kirby has just raised with me.

In dealing with the Act as it was originally enacted, your Honours will see that section 36 was materially in the same terms. There was a section 58(3) that was in materially the same terms, but under subsection (5), if an applicant in proceedings before the Administrative Appeals Tribunal for an ordinary review of a claim that a document is an exempt document was met with a certificate, then the applicant was entitled to ask the AAT to refer the determination of the relevant question to this other specially established body, the Document Review Tribunal.

KIRBY J:   Who made up the members of the Document Review Tribunal when it existed?

MR GRIFFITHS:   If your Honour drops down to the last dot point on that note on the first page:

the DRT was to be comprised of persons who were at that time, or had been, a judge of a federal court –

in other words, of a court established by the Federal Parliament –

or a Supreme Court.

Section 72 so provided.  I will take your Honours again in due course to the extrinsic material where in enacting the Act in 1982 some emphasis was placed upon the seniority and prestige of the members of this Document Review Tribunal who would perform this important task, possibly involving sensitive documents and material.  At the time it was felt by the Parliament that a body other than the Administrative Appeals Tribunal should perform that role.

It was in 1983, your Honours, that the Document Review Tribunal was abolished and its jurisdiction transferred to the Administrative Appeals Tribunal.  We have included the relevant sections of the 1983 Amendment Act behind tab 6 of these materials.

KIRBY J:   What was the explanation given at the time for abolishing the Document Review Tribunal and remitting the jurisdiction entirely to the AAT?

MR GRIFFITHS:   If your Honours go to the respondent’s extrinsic materials – the large white folder – not the appellant’s but the respondent’s – it contains behind tab 1 ‑ ‑ ‑

KIRBY J:   If you just tell me, that will be enough.

MR GRIFFITHS:   The then Attorney-General, Senator Evans, in 1983 said in the second reading speech that:

the special Document Review Tribunal is to be abolished.  Although the Government has considered it premature to take the further step of abolishing the system of conclusive certificates under the Act, it does not consider that there is any justification for retaining a special tribunal to deal with these matters.  It believes that they can be adequately and properly considered by the presidential members of the Administrative Appeals Tribunal who, in the context of the other jurisdictions of the Tribunal, are building up a considerable body of expertise in the handling of administrative matters.

So there was obviously a growing confidence on the part of the Parliament that the Administrative Appeals Tribunal was suitably equipped to deal with this special review jurisdiction but would only be dealt with by persons of equally high calibre to those who constituted the Document Review Tribunal. 

I will take the Court in due course, or mention in due course, some decisions of the Document Review Tribunal which ceased to exist when those amendments came into force on 1 January 1984.  One of those decisions is a decision of Justice Morling in a case called Re Peters which is referred to in paragraph 34 of the respondent’s written submissions.  The report of the case is only a very brief one, your Honours, in the Administrative Law Notes which are at the back of the Administrative Law Decisions.  The decision is 5 ALN 306.  I do not ask the Court to go to it now.  I simply mention that in that particular case which involved review of a conclusive certificate Justice Morling proceeded on the basis that he did have to balance the competing facets of the public interest. 

I am straying a little bit away, but I can also mention, because it is pertinent, that in one of the first cases where the AAT performed its new role of reviewing certificate cases, Justice Davies, then President of the Administrative Appeals Tribunal, in a case called Re Howard (1985) 7 ALD 626 – it is on our list but I do not ask the Court to go to it at the moment – similarly proceeded on the basis involving a conclusive certificate under section 36 of the Freedom of Information Act, on all fours with here, that he should balance competing aspects or facets of the public interest.

KIRBY J:   That was in order to find whether the alleged grounds were reasonable, was it?

MR GRIFFITHS: Correct. So, in other words, in both those cases the judges involved both adopted the view which we urge is the proper construction of the provision. Your Honours, could I go back if I could to the FOI Act itself and to section 58(4) which is the first of the relevant provisions dealing with the Tribunal’s task in a conclusive certificate case although, as your Honours would appreciate, it deals with a conclusive certificate having been given under a provision in the Act other than section 36, which of course is the relevant provision in these proceedings. Subsection (4) says where in effect there is on foot an ordinary appeal procedure or proceeding before the AAT in respect of refusal to grant access:

being a document that is claimed to be an exempt document under section 33, 33A, 34 or 35 and in respect of which a certificate . . . is in force under that section, the Tribunal shall, if the applicant so requests, determine the question whether there exist reasonable grounds for that claim.

That claim would appear to relate back to the claim that the document is an exempt document.

The four provisions in question are sections 33, 33A, 34 and 35 and they each deal with exemptions covering such matters as, in the case of 33, “Documents affecting national security, defence or international relations”.  Section 33A deals with documents affecting relations between the Commonwealth and the States; 34 is “Cabinet documents”; 35 is “Executive Council documents”.

GLEESON CJ:   Are they all grounds that turn upon the objective character of the document as distinct from any judgment about public interest?

MR GRIFFITHS:   In the main that is the case, your Honour.  It is the case, for example, with section 34, in our respectful submission, because the exemption criteria, if I can use that expression, for Cabinet documents in section 34(1) is purely an objective description.

GLEESON CJ:   So the only room for argument is about the nature of the document.

MR GRIFFITHS:   Is about the nature of the document or, to put it another way, its proper characterisation.

HAYNE J:   That stands in sharp contrast with 33, does it not?

MR GRIFFITHS:   With 33 or 36, your Honour?

HAYNE J:   Section 33.

MR GRIFFITHS:   Section 33 is another – dealing with national security, defence or international relations?

HAYNE J:   Because the certificate in question is given under 33(2), is that right?

MR GRIFFITHS:   Yes.

HAYNE J:   The certificate must specify the reason.  The reason is a reason referred to in subsection (1), is that right?

MR GRIFFITHS:   Yes.

HAYNE J:   And that must be a reference to one of (a) or (b).

MR GRIFFITHS:   Indeed.

HAYNE J:   And (a) or (b) are matters of judgment, are they not?

MR GRIFFITHS:   I take your point, your Honour.  Indeed, that is right, because it is looking at harm or effect of disclosure in terms of causing damage to one or other of the relevant matters.

HAYNE J:   The same is true of 33A, is it not?

MR GRIFFITHS:   It is and 33A ‑ ‑ ‑

HAYNE J:   Thus there can be no single global answer given of the kind you earlier gave.

MR GRIFFITHS:   Your Honour, I was going to go back and go through them seriatim.  I went straight to the Cabinet document one because it fell within what the Chief Justice put to me.  There are modifications that do need to be made in respect of the other exemptions, that is accepted, in terms of 33.

HAYNE J:   It is not a case of making modifications; it is a case of reading the Act in its operation in respect of each of the sections and not applying a single global answer to the question, is it not?

MR GRIFFITHS:   With respect, I had intended to deal with the matter seriatim starting with section 34 which fitted the description that the Chief Justice put to me.  Section 35 is another example, akin with section 34, where it is an objective test or an objective characterisation as to the nature of the document.  Without having to have regard to the matters that Justice Hayne has correctly pointed out affect section 33 and in the case of 33A again you have matters of judgment involved in subsection (1) which defines what the exemption criteria are and added to 33A is a further complication introduced in subsection (2) where two matters are specified as being conditions to the Minister issuing a conclusive certificate, namely the satisfaction that the document:

(a)is an exempt document for a reason set out in subsection (1); and

(b)is not a document containing matter the disclosure of which under this Act would be, on balance, in the public interest -

That additional element in subsection (2) would appear to relate to an overarching or overriding discretion or matter set out in section 33A(5) which provides that:

This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

KIRBY J:   What force do you give to the adverb “conclusively”?

MR GRIFFITHS:   Well, it is “conclusively”, subject though to the operation of Part VI.  It is conclusive for all purposes of the Act subject to the provisions in Part VI applying and the relevant provision will be either subsection (4) or subsection (5) depending upon the document in relation to which the certificate applies.

GLEESON CJ:   Does anything turn upon the fact that in some of these provisions the Parliament uses the expression “would be on balance in the public interest” and in some it just uses the expression “would be contrary to the public interest”?

MR GRIFFITHS: No. In our respectful submission, no particular significance does attach to that. The language of “contrary to the public interest”, which appears of course in section 36, is language which has been in that provision, your Honours, since the Act was enacted. It has always been the case that section 36(1) has been expressed in this dual way. The formula of “be on balance in the public interest” is a formula which came into the Act again with the 1983 amendments.

KIRBY J:   So it is just another drafter’s hand?

MR GRIFFITHS:   It is another drafter’s hand, it would appear.  If I could take the Court to the relevant material?  The then Attorney‑General explains in the second readings speech to the 1983 amendments, for example, that one of the reasons for introducing the overriding discretion in a provision such as section 33A was to deal with a practice which had developed where one State marked all of its correspondence to the Commonwealth confidential with a view to attracting the exemption having regard, of course, to (1)(b) of the Act.  Senator Evans explains that that was not the purpose or intention of the provision and, therefore, the overarching or overriding serving the public interest provision was inserted.

Can I just read quickly to your Honours from page 1180 of the Senate Hansard for 2 June 1983 which is behind tab 1 of our learned friend’s extrinsic materials? 

HAYNE J:   I am not sure that we have the respondent’s extrinsic material at the moment, do we?

MR GRIFFITHS:   I do beg your pardon, your Honour.

MR TRACEY:   Your Honours, what happened was that we offered them to the Court but we were advised by the Registry that the Court would be provided with them and that we should not file them.  If it will assist the Court, we will arrange for copies to be provided.

GLEESON CJ:   Thank you, yes, please.

MR GRIFFITHS:   Could I just read out the paragraph very quickly.  Again, in the context, this is the second reading speech for the 1983 amendments.  The Attorney is explaining the various amendments, including the abolition of the Document Review Tribunal, to which I have already made reference.  He then says:

three of the exemption provisions of the Act will be made subject to an overriding public interest test. This will give effect to relevant recommendations of the Senate Standing Committee, particularly in the case of Commonwealth/State documents. The first of these exemptions concerns Commonwealth/State documents, that is, documents the disclosure of which may cause damage to Commonwealth/State relations or disclose information communicated in confidence by a State Government or authority to the Commonwealth. The Bill will provide, in a new section 33A to be inserted in the Freedom of Information Act, that a document will not be exempt on this ground if the disclosure of the document under the Act would, on balance, be in the public interest. That is, a document cannot be withheld under the Commonwealth/State exemption if the disclosure of the document would serve the public interest. Thus, for example, a document cannot be withheld merely because it contains information communicated in confidence by a State if there is a public interest in having access to that information. Since the Freedom of Information Act was enacted, at least one State has made a practice of designating most of its communications in writing with the Commonwealth as confidential, presumably to bring all of those documents within the scope of the Commonwealth/State exemption. It was never intended the exemption would operate in that way. The addition of the overriding public interest test will ensure that documents cannot be withheld where they ought to be released.

What is perhaps of some interest is that that overriding discretion is precisely that – an overriding discretion which is not provided as part of the exemption criteria themselves as is the case with section 36. Section 36 does not have an overriding discretion in the same sense as the phrase that the Chief Justice put to me is an overriding discretion. Rather, the exemption criteria under section 36, dealing with internal working documents, has two elements to it. First, the objective question of the characterisation of the document as being a deliberative process document and then a second exemption criteria, which is that disclosure “would be contrary to the public interest”.

GLEESON CJ:   I am just wondering how section 58(4) operates in relation, for example, to a claim under 33A?  The Tribunal has to determine whether there exist reasonable grounds for the claim but the claim is, or includes a claim, that on balance something is or is not in the public interest. 

MR GRIFFITHS:   Yes, indeed.  One of the ‑ ‑ ‑

KIRBY J:   That suggests doing or revisiting the balance. 

MR GRIFFITHS:   Yes.  There is a degree of ambiguity, in our respectful submission, as to the extent to which Tribunal certificate review under subsection (4) in a case like 33A extends beyond the question of whether there are reasonable grounds for the claim that it is an exempt document.  In other words, an exempt document by reference to the exemption criteria set out in subsection (1) ‑ ‑ ‑

HAYNE J:   How do you deal with the last words of 58(5) if that is the construction you are giving to it?  Determine the question whether, and it sets out a question, the full content of which is claimed contrary to public interest?  Now, you seek to pitch it back into whether it meets the category exempt, do you?

MR GRIFFITHS:   No, not at all, your Honour, not at all.  The issue that the Chief Justice has raised is an issue which does not arise in respect of subsection (5) because subsection (5) makes abundantly clear what the claim is that needs to be addressed with a view to determine whether there are reasonable grounds for it.  The claim is that the disclosure of the document would be contrary to the public interest.  There may well be some doubt as to whose claim.  Is it the claim of the agency who is arguing in the primary proceedings that the document is an exempt document, or is the claim the claim made by the Minister who gives the certificate?  I will come back and deal with that, if I may.

GLEESON CJ:   I had in mind something slightly different.  I was just wondering, and it may not bear on the construction of subsection (5), but I was just wondering whether in the application of subsection (4) to, for example, section 33A(2) the concept of determining whether there exist reasonable grounds for the claim requires you to address what is described as a balance.

MR GRIFFITHS:   In our respectful submission, yes, it does.  In other words, although (4) is expressed by reference to a claim to a document being “an exempt document” under 33A, and “an exempt document” is defined in subsection (1) as relating to two matters, it is apparent that the Minister under subsection (2) can give a conclusive certificate which relates not only to the question whether it is an exempt document under subsection (1) but goes further and deals also conclusively with the question whether or not the document contains:

matter the disclosure of which under this Act would be, on balance, in the public interest –

Subsection (2A) then makes clear that that certificate is conclusive of the two matters set out therein, but subject to the operation of Part VI.  The difficulty arises, and this is I think what your Honour is alluding to, is that in subsection (4) the Tribunal’s review jurisdiction is expressed in terms of a document that is claimed to be an exempt document being the relevant target, if I can put it that way, in respect of which the relevant question needs to be determined.

But it would appear that the intention, although there is some ambiguity, we accept that, was that certificate review by the AAT under subsection (4) in the case of a section 33A claim goes beyond the issue of exemption, but extends to the Minister’s conclusive certificate dealing with “would be, on balance, in the public interest”.

One reason why we say that, your Honours, is that if your Honours drop down to section 33A(4) we get yet another category of conclusive certificate.  It relates to a situation where a request is made, the Minister is satisfied that information as to the very existence or non‑existence of a document would cause a document to be an exempt document, go back to subsection (1) and (b):

not cause the last‑mentioned document to be a document containing matter the disclosure of which under this Act would be, on balance, in the public interest –

There is that formula or phrase again.  Then again, (4A) in familiar terms:

Subject to the operation of Part VI, such a certificate . . . establishes conclusively –

It is both matters again.

If your Honours then go over to 58(5A) – I am leapfrogging (5) at the moment, which is the section 36 conclusive certificate – (5A) is the one that deals with the type of conclusive certificate that I have just referred to. The tribunal, if requested, determines:

the question whether there exist reasonable grounds for the claim that information as to the existence or non‑existence of the documents –

et cetera, cause it to be an exempt document or, in (4) quite plainly, if you go to (5A)(b)(ii), it is made expressly clear that the review extends to that overarching discretion.  It is not good drafting, your Honours, but I am at a loss to understand why it is that the AAT would have a review jurisdiction to determine the override discretion under 33A(4) and not have that in respect of a ministerial certificate issued under section 33A(2).  But there is some ambiguity there; we accept that.

KIRBY J:   Well, it may be that when we come to 58(5) we will also conclude that there is some ambiguity.  I think ambiguity is inescapable because it depends a bit on the focus that the respondent puts on the word “claim”.

MR GRIFFITHS:   Yes.

KIRBY J:   And in the end we may have to face up to the fact that there is ambiguity in this Act and then seek to give it the construction that most advances the purpose of the Act, which is to increase the access to government information and to increase the administrative mechanisms that facilitate that access.

MR GRIFFITHS:   We accept that, your Honour, and it may well be that that is one of the reasons why your Honour was urging me to go to section 3 of the Act.

KIRBY J:   Well, in due course.  I am quite patient.  I am a very patient person.  I have learned that.

MR GRIFFITHS:   But if I could just remind your Honours that section 3(2) provides its own mandate, if I could use that expression, for a purposive approach to the construction ‑ ‑ ‑

KIRBY J:   Well, the starting point is the starting point of governmental secrecy, because that was the regime that existed before this Act and the Official Secrets Act regime which we inherited, and I think that was applied in Australia under the Crimes Act 1914, was it not?

MR GRIFFITHS:   Yes, the Official Secrets Act 1911.

KIRBY J:   So we have to, as it were, look at what this Act was changing, because it was a radical change - started in Scandinavia, adopted in the United States, copied in Australia.

MR GRIFFITHS:   Yes, indeed. and its long title accurately describes its content and its thrust, and it is “An Act to give to members of the public rights of access” and these are legally enforceable rights of access “to official documents of the Government of the Commonwealth and of its agencies”.  That intention is reinforced by the objects clause in section 3 that:

The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth –

and it does so in various ways including relevantly:

(b)creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs –

et cetera.  Subsection (2) is then the purposive mandate:

It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) -

Now, having said that ‑ ‑ ‑

KIRBY J:   That is a specific reinforcement then for the provisions in the Acts Interpretation Act ‑ ‑ ‑

MR GRIFFITHS:   Yes, indeed.

KIRBY J:    ‑ ‑ ‑ which advance a purposive construction of federal legislation.

MR GRIFFITHS:   Indeed, contained within this Act.

KIRBY J:   All of this the respondent accepts – the respondent’s submission accepts all this, but says that the devil is in those words as far as possible in the chapeau and in the words “subject to the exemptions and restrictions”.

MR GRIFFITHS:   Yes, indeed.  It has to be acknowledged that the objects clause itself in its terms says that the creation of this legally enforceable right is limited by exceptions and exemptions necessary for the protection of essential public interest.  If there is an ambiguity, we accept what your Honour says, that the correct approach is to effectuate the purpose of the legislation.

KIRBY J:   There is of course also the fact that in the end the Minister can have the last word.

MR GRIFFITHS:   Absolutely.

KIRBY J:   I think that is also a very important consideration.  Where is that provision?  Maybe you are going to take us through 58.

MR GRIFFITHS:   I am going to take you to it, your Honour, but I can indicate where it is.  I will come back to it in more detail but it is in section 58A.

KIRBY J:   You have not really yet analysed 58(5), so I think I will just wait until you do that.

MR GRIFFITHS: No, I have not and that is where I was. I will come back to 58A if I may. We come to (5). It is of course the critical provision for these proceedings. Consistently with (4), it operates in a context of an application having been made to the tribunal for a review of an agency decision claiming that a document is an exempt document, in this case under section 36 of the Act. If there is a certificate in force:

the Tribunal shall, in a case where it is satisfied that the document is a document to which paragraph 36(1)(a) applies –

I will come back to that in a moment –

if the applicant so requests, determine the question whether there exist reasonable grounds for the claim that the disclosure of the document would be contrary to the public interest.

Section 36, if your Honours could go to it, I have already indicated in response to the matter that the Chief Justice put to me that the exemption criteria under section 36 include both the objective characterisation issue under paragraph (a) as well as this “would be contrary to the public interest”. It is not an overarching, overriding public interest consideration as we have in 33A; it is part of the exemption criteria themselves.

The conclusive certificate operates only in respect of the second of those two criteria. It operates only in respect of the issue whether disclosure of the document under the Act would be contrary to the public interest. Section 36(3) provides as much:

Where a Minister is satisfied, in relation to a document to which paragraph (1)(a) applies –

that is an objective question –

that the disclosure of the document would be contrary to the public interest, he or she may sign a certificate to that effect (specifying the ground of public interest in relation to which the certificate is given) and, subject to the operation of Part VI, such a certificate, so long as it remains in force, establishes conclusively that the disclosure of that document would be contrary to the public interest.

KIRBY J:   There are two textual arguments against the propositions that you are advancing on 58(5), at least two.  One is the fact that the focus of the analysis is on the word “claim”, so we are not looking at whether there are reasonable grounds for the public interest in globo but we are looking at whether there are reasonable grounds for the claim of the disclosure, et cetera.  The second is, and this is imported by the scheme of the Act, that the claim is made by a federal Minister who is both personally and politically accountable in Parliament to making such claims and that this is an exceptional review which, as it were, backs up the normal constitutional review of Parliament and the elected members of Parliament making the Minister answerable there.

MR GRIFFITHS:   If I could deal with both those matters briefly at this point, in our respectful submission, no particular significance as far as the issue of construction is concerned turns on the use of the phrase “for the claim”.  That same phrase appears also in subsection (4) where it is referring to “for that claim”, the last line of subsection (4), which has to be a reference back up to the claim that it is an exempt document.

What we are dealing with here is, under subsection (5), a claim made either by the agency or by the Minister - it does not really matter because the claim is the same - namely that disclosure of the document would be contrary to the public interest.  Insofar as the ‑ ‑ ‑

KIRBY J:   The agency cannot give the conclusive certificate, can it?  It is only the Minister.

MR GRIFFITHS:   An agency cannot but a delegate of the Minister can under subsection 36(8).  It provides that:

The responsible Minister of an agency may, either generally or as otherwise provided by the instrument of delegation, by writing signed by him or her, delegate to the principal officer of the agency his or her powers under this section in respect of documents of the agency.

Where that occurs the delegate’s acts are deemed by section 36(9):

to have been exercised by the responsible minister.

Indeed, in a number of the conclusive certificate cases involving, for example, Cabinet documents including the Burchill Case, a decision of the Full Court of the Federal Court, the conclusive certificate there was actually signed by the Secretary to the Department of Prime Minister and Cabinet acting as delegate ‑ ‑ ‑

KIRBY J:   In the present case the conclusive certificate was signed by the Treasurer.  Is that correct?

MR GRIFFITHS:   In the present case it was signed by the Treasurer personally.  Insofar as the accountability is concerned we have a little difficulty ourselves understanding how that argument really impacts significantly on the construction of the AAT’s review role under any of these provisions including subsection (5).  There is accountability at the end of the day and it is provided for in section 58A to which I already made reference.

KIRBY J:   Can I put to you what I understand to be the contrary argument and it is that because there is personal and political and public accountability in, in this case, the Treasurer, in Parliament and out of Parliament, that therefore it should not be all that surprising that the AAT does not get within cooee of a merits review.  It is simply looking effectively at a Wednesbury‑type review.

MR GRIFFITHS:   That is not easy to ‑ ‑ ‑

KIRBY J:   An irrational decision as distinct from whether it is a reasonable decision or whether there are reasonable grounds in fact.

MR GRIFFITHS:   There are indications that point to the contrary of that, of course, including a matter that I have also referred to, namely the special constitution of the Tribunal and its historical heritage from the Document Review Tribunal and the prestigious senior members – I beg your pardon – members of the judiciary who constituted that DRT and then the recognition that only presidential members of the AAT would discharge this special jurisdiction of the Administrative Appeals Tribunal.

KIRBY J:   There is also the backup that in the end the Minister can have the last say ‑ ‑ ‑

MR GRIFFITHS:   Indeed.

KIRBY J:    ‑ ‑ ‑ and therefore that it may not be all that surprising, if I can use that expression again, that there is a substantial consideration of the counter arguments when you are evaluating the reasonableness of the grounds.

MR GRIFFITHS:   Yes.  It clearly was not the Parliament’s intention that this should be just some sort of a perfunctory review carried out by the Administrative Appeals Tribunal in circumstances where section 58A itself expressly imposes obligations on the responsible Minister to have regard to the Tribunal’s determination.  If I could just add one further comment in respect of section 58A, there was not an equivalent provision of section 58A when the Document Review Tribunal had jurisdiction in respect of certificate cases.  It was a matter that was simply left to the Minister to have regard to a decision by the DRT.  This is a matter which we deal with, your Honours, in our note on legislative history behind tab 10 of our supplementary materials.  If your Honours have that handy.

KIRBY J:   What is the point you are making?

MR GRIFFITHS:   I am simply making the point that when 58A was inserted in 1983 that there was no express regime in the Freedom of Information Act, as originally enacted, when the DRT had this review jurisdiction, to consider – or, more particularly, then face the Parliament if the Minister upon considering the DRT decision was not inclined to revoke the certificate.  Section 58A introduced such a specific regime.

GLEESON CJ:   In this present case, did the Administrative Appeals Tribunal make a determination adverse to the certificate, if I can use that expression, in respect of any of the documents that were in dispute?

MR GRIFFITHS:   It made a decision adverse in respect of two documents which it said, on its review, did not meet the objective test in 36(1)(a); in other words, that they were objectively not internal working documents.

KIRBY J:   These were letters from citizens to the Department, is that correct?

MR GRIFFITHS:   I cannot recall now exactly what they were, your Honour.

KIRBY J:   I think that is how they are described in the submissions.

MR GRIFFITHS:   I think it was correspondence to the Department, from memory.

GLEESON CJ:   What I was trying to get at was this.  In relation to a document that by hypothesis meets the criteria of 36(1)(a), on the approach argued against you how could a determination ever be adverse to the certificate?  I mean by that that if the document is accepted or found to be a document that falls within 36(1), on the approach taken against you will not there inevitably be a reasonable ground for saying that disclosure of the document was contrary to the public interest?

MR GRIFFITHS:   Yes.  I think the answer to that is yes, that it will flow necessarily, although it would still be, of course, obligatory for ‑ ‑ ‑

GLEESON CJ:   I wondered whether that was not going to be one of your arguments.  I wondered whether you were not wanting to argue that if the construction of the section adopted by the majority of the Full Court of the Federal Court is correct it is not easy to imagine any circumstances in which this determination required by subsection (5) could ever have a practical operation.

MR GRIFFITHS:   Indeed, and we do make that submission and we make it in our outline of written submission that the ‑ ‑ ‑

KIRBY J:   But there are two answers, are there not?  First, that sometimes legislation might and has been drafted, it has been known, to appear to give rights but when you actually analyse its language those rights are not given and therefore we should not be too shocked if that actually happens.  That is the inconsequential answer, but the consequential answer is that there is still Wednesbury  unreasonableness, that effectively Parliament is saying, “Well, when we said it is a conclusive certificate, we meant what we said, it is conclusive, but we do reserve to this body made up of people who we count as roughly equivalent in the national pecking order to ourselves, judges, equivalent to ministers, to look again but only to see if the claim which we have made is so unreasonable that it requires setting aside on the basis that no rational minister can make it”.

MR GRIFFITHS:   Yes.

KIRBY J:   I think that is the way the argument is put against you, that it is a Wednesbury unreasonableness criterion and that alone.

MR GRIFFITHS:   Can I answer, first of all, the Chief Justice’s observations by reference to paragraph 54 of our outline of written submissions where we say the approach of the Tribunal in this case as upheld by the majority of the Federal Court is to render essentially meaningless and nugatory the review process provided for in subsection (5).

KIRBY J:   It is true that in Australia Wednesbury unreasonableness has been taken as virtually meaningless, but in England it has not.  In England they have rephrased it lately and therefore maybe we ought to consider that.  In any case, even within the language that is conventionally adopted, so unreasonable that no reasonable person could have made the decision, there is still something but not very much to be decided.

MR GRIFFITHS:   Yes.  In our respectful submission, reasonable grounds in 58(5) is not positing a Wednesbury unreasonable test.  Different language could have been used if that was the intention.  The phrase that is used is “reasonable grounds”.

GLEESON CJ:   Could I direct your attention to page 964 of the appeal book, paragraphs (a) and (b) being the first two of the grounds that were relied upon in the Administrative Appeals Tribunal hearing, and Justice Downes found that each of those was a reasonable ground.

MR GRIFFITHS:   Yes.

GLEESON CJ:   What I intended to ask you was this.  If each of those is a reasonable ground for concluding that disclosure is contrary to the public interest, how could it be said that those grounds would not apply to a document that by hypothesis falls within the description of 36(1)(a)?

MR GRIFFITHS:   Yes.  Certainly (b) will always apply, your Honour.  Paragraph (a) may not always apply because (a) itself is qualified by reference to issues which are considered to have ongoing sensitivity and are controversial and which affect the Minister’s portfolio. 

HAYNE J:   That is to say there is temporal element in (a).

MR GRIFFITHS:   There is a temporal element in it and there is also in (a) reference to sensitivity and controversy.  That may not always be the case in respect of a document which objectively fits within (a).  Paragraph (b) I agree absolutely with what your Honour says.

GLEESON CJ:   Take (b).  If (b) exists and (b) is a reasonable ground and (b) will always apply to a document that falls within 36(1)(a), what is the decision‑maker doing under section 58(5)?

MR GRIFFITHS:   Determining whether or not that is a reasonable ground.

HAYNE J:   No, there is a further element in that.  You have first to give content to public interest and his Honour’s example to you may be directing attention to the composite phrase and, in particular, to what content is to be given to public interest.  Ground (a) reveals, perhaps, that public interest may have a temporal element, that there may be an interest in matters being revealed now or not being revealed now that differs from matters being revealed then or not being revealed then, but also what appears in ground (b) may invite rather close attention to what exactly is wrapped up in this expression “public interest” and from there to how the Tribunal is to go about its task and what assumptions are made about how the Tribunal knows what is in the public interest; whereas, by contrast, politicians at least frequently assert their deep knowledge of what is in the public interest and those are at least matters of political debate.  There is about three levels of inquiry provoked by his Honour’s question.

MR GRIFFITHS:   There are, and it is one of our complaints about the way that Justice Downes approached this issue by reference to if I can look just at ground (b).  His approach was to ask whether or not that ground is a ground which has been accepted as a valid ground for holding a deliberative document to be exempt under 36(1) by reference to previous decisions of the Tribunal.  If he has evidence before him from the respondent, as was the case here with Mr Murray, to the effect that he agreed with this ground being a valid ground and then without factoring in material or arguments that were advanced by the appellant as to why it was not necessarily contrary to the public interest for documents to be disclosed because of a claim that it might cause officers in future to avoid written communication and instead prefer oral communication, there was countervailing material placed before the Tribunal which challenged the reasonableness of each of the grounds, including ground (b).

KIRBY J:   Can I tell you, when I saw that in your written submissions I got a bit nervous because of the fact that, does that then require this Court to go through all of the evidence that you called before the Administrative Appeals Tribunal and then to look whether there are glimpses of that evidence in the reasons of Justice Downes or do you say that on their face Justice Downes simply has not referred to what Mr Rose and others said and that we do not really get into an evaluation of the content of his reasons and the balance of the reasons, because that would be an odd thing to be doing in a review of a matter of law.

MR GRIFFITHS:   Your Honour, Mr Tracey will correct me if I am wrong, but your Honour will recall when I accepted his formulation of the central issue in the proceedings, paragraph 1 of his written submissions:

Whether on its proper construction subsection 58(5) of the FOI Act requires the Administrative Appeals Tribunal (the Tribunal) to take into account and balance public interest considerations –

I said it is implicit in that formulation that Justice Downes did not do that.

KIRBY J:   Well, you said that, but would we not, in order to come to such a conclusion, have to examine the grounds to make sure that he has not referred – and does he totally ignore the evidence that was put on your case or does he simply not give it a correct weighting?

MR GRIFFITHS:   No, if the issue was simply one of not giving it a correct weighting, we would not be able to complain because the scope of review to the Federal Court from a decision of the Administrative Appeals Tribunal of course is on a question of law.  If it is just a question of weight, there is no appealable point.

KIRBY J:   So you say on the face of Justice Downes’ reasons there is no reflection/hint/suggestion/analysis/reasoning that addresses the case that you presented of the public interest issues that you were contending goes to the reasonableness?

MR GRIFFITHS:   There is no attempt by his Honour to address or bring to account competing facets of the public interest which pointed in a direction away from the claim that disclosure would be contrary to the public interest. 

KIRBY J:   But take 972, he has the heading “The Evidence” and at paragraph 54, which is in that section, he refers to Mr Rose’s evidence and Mr Stutchbury’s evidence.

MR GRIFFITHS:   He says in 54, “I will accept his evidence.”  He then goes over and he deals with Mr Rose’s evidence as far as the first ground in the certificate is concerned and he says in 57:

I will, of course, consider the opinions of Mr Rose in my assessment of the claims but I will not regard them as definitive.

He deals with Mr Stutchbury’s evidence in paragraph 58.  Then paragraphs 59 and 60 are important, in our respectful submission, your Honours, for disclosing Justice Downes’ true approach.  In 59, after generically describing the seven grounds that are set out in the certificates, he says at page 974:

Neither of these grounds challenge the existence of a substantial public interest in knowing the subject matter.  Indeed, several grounds build on it – it is the importance of the subject matter which strengthens the conclusion that matters should not be disclosed which might mislead.  The first category looks at a different and potentially conflicting public interest.  The public interest in having access to material on important topics is not in doubt.  But there may be another public interest, in permitting confidential communications with Ministers of the Crown and their advisors particularly where release of such documents might have some adverse effect on the ordinary operations of government.  This public interest may conflict with a public interest in disclosure of important information available to government.  The primary role of government is to govern.  Interference with the smooth carrying out of that role will be against the public interest.

He is looking at the negative side, if I can put it that way, of the public interest equation of what would be contrary to the public interest.

HAYNE J:   You have referred several times in various ways to public interest being divisible, competing facets of public interest, public interest equation.  At a point convenient to you in the development of your argument I need to understand what you say 36(1)(b) means by its reference to “contrary to the public interest”.  In particular, I need to know whether that is referring to a conclusion or whether it is referring to something more than the result of an inquiry.

MR GRIFFITHS:   I will come back and deal with it because it is a very important part of our case, but can I indicate now that we say that it does indicate a conclusion.  It indicates the outcome of a process of reasoning which seeks to determine whether disclosure would be contrary to the public interest.  Because the concept of public interest itself is one which invariably has competing elements or facets to it, it must involve a weighing or balancing exercise to come ultimately to a claim or to a conclusion that disclosure either would be contrary to the public interest or that disclosure would be in the public interest.

Perhaps I could come back in half a moment and take your Honours to some of the case law which we say supports us on that proposition, but before I do can I just come back to Justice Kirby, if I may, and draw your Honour’s attention also to paragraph 60 of Justice Downes’ reasoning where while making a reference to the appellant’s evidence and while saying that:

Mr Stutchbury’s evidence concentrated on the public interest in free and informed community debate and upon the robustness of modern government which can accommodate such debate.  This is not to be doubted.  However, there remains a legitimate potential public interest in letting government get on with its role without unnecessary intrusion and distraction.  Provided the latter view is a reasonable view it will be difficult to upset a conclusive certificate based on it.

His Honour is focusing upon the negative grounds, if I can use that expression, that are set out in the certificate, not considering their validity vis‑à‑vis countervailing grounds which point in the opposite way but instead, in a Nelsonian fashion, turns a blind eye to the positive, focuses only on the negative, says as long as there is a reasonable basis for the negative by reference either to past authorities or by reference to what Mr Murray says in his evidence, then there is a reasonable basis for the claim.

KIRBY J:   And of course that is supported by the respondent by the argument that the focus is on the reasonableness of the claim.

MR GRIFFITHS:   Yes.

KIRBY J:   But you say you cannot reach a conclusion in this independent Tribunal with its high level participants on the reasonableness of the claim unless you hear the case that suggests that it is an unreasonable claim, and that you weigh the reasonable and the unreasonable to come to the Tribunal’s ultimate conclusion of reasonableness.

MR GRIFFITHS:   Indeed that is correct.

GLEESON CJ:   The problem is that the language of the statute does not refer to the reasonableness of the claim; it refers to the reasonableness of the grounds for the claim.  The grounds that we are concerned with are set out on page 964 which are disparate in character.  Paragraph (b) on 964 is different, as I see it, from paragraph (d), for example.  It seems to me at the moment it is difficult to imagine how a document that falls within 36(1)(a) could not be the subject of paragraph (b).

MR GRIFFITHS:   Yes, I accept what your Honour says and I agree with what your Honour says.

GLEESON CJ:   On the other hand, if you look at paragraph (d), I would have thought you would need to look closely at a particular document to see whether paragraph (d) had anything to do with it.  But the approach that has been taken in the Federal Court, as I understand it, is to say if there exists a ground for this certificate such as (b) and if (b) is not irrational, then there exists a reasonable ground for the claim.

GLEESON CJ:   A good deal of the debate that is being generated in this case may be the result of some ambiguity in the way in which the respective sides are formulating their respective propositions, but the issue as you formulated it in paragraph 1.b.i of your submissions was whether the concept in 58(5) requires the Tribunal to consider competing facets of the public interest.  I understand your opponents to say, yes, it does require that they be considered, and that is exactly what Justice Downes did.  What it does not require is that Justice Downes should engage in the exercise of trying to work out whether he agrees with the Treasurer.

MR GRIFFITHS:   Yes.  As I say, your Honour, in response we say obligation to consider and that it was not meaningfully considered and we would draw attention again to paragraphs 52, 59, 60 and 66 of Justice Downes’ judgment which reveal, in our respectful submission, the process which he did adopt which was one of finding whether or not there was either a precedent or some material in the respondent’s evidence which showed that one of the grounds that was relied on was a rational and non‑absurd ground and then applied it to the particular document and that is enough.  There is no need to take into account competing material going to that particular ground.

HEYDON J:   He took it in to account.  He just did not find it convincing – Mr Rose.  Paragraph 56 is a detailed analysis of Mr Rose’s testimony.

MR GRIFFITHS:   Paragraphs 59 and 60 – the judgment naturally needs to be read as a whole, but paragraph 59 and particularly paragraph 60, the last sentence especially of paragraph 60, indicates the way in which Justice Downes has approached the matter and it is confirmed by his concluding sentences in paragraph 66: 

It is not for me to decide which of the opinions of the applicant’s and respondent’s witnesses are preferable.  That is not the subs 58(5) task.  Provided there is a reasonable basis for an opinion and there is evidence to support it –

and the evidence he is referring to there is the respondent’s evidence, it:

will be satisfied.  The evidence of Mr Murray as to the reasonableness of the claims in the conclusive certificates affirms the findings of previous Tribunals that there is a reasonable basis for claims of the kind represented by each of the claims made in conclusive certificates here.

KIRBY J:   Mr Tracey took us to Lordsvale.  Have there been many other cases where the Tribunal has, as it were, overridden the decision of the Minister?

MR GRIFFITHS:   I believe in the – I cannot ‑ ‑ ‑

KIRBY J:   It is like hen’s teeth, is it?  There are not many of them.

MR GRIFFITHS:   Well, I am certainly struggling a little to think of any other examples but it may well be that Mr Tracey could assist the Court on that.  I cannot.  There is one other matter I would just like to deal with briefly in reply.  A number of your Honours have expressed frustration at the fact that you do not have the documents and we have indicated that we are not in the position to unfortunately overcome that lacuna.

KIRBY J:   The reason for that is that the way a court normally decides cases is by concrete analysis looking at the actual materials and applying the law to the materials which we cannot do here.

MR GRIFFITHS:   Yes.  Indeed.  The same sense of frustration actually was expressed by the New South Wales Court of Appeal in an FOI case handed down by that court, which we have in our written submissions.  The court was being asked by WorkCover to rule on a claim for legal professional privilege in the context of the Freedom of Information Act (NSW) where the documents in question had been provided both to the Administrative Decisions Tribunal and to the appeal panel but then were withheld from the New South Wales Court of Appeal and the Court of Appeal expressed its frustration at its inability in those circumstances to be able meaningfully to rule on the legitimacy of the claim.

GLEESON CJ:   That is because of the way courts work.  The common law courts work by applying the law to concrete examples, not by deciding which of two competing essays on a topic of law they prefer.

MR GRIFFITHS:   We understand the Court’s frustration.  As I say, it is a matter that we are not in a position to overcome.  The Court might, however, find of some use some documents which were the subject of the conclusive certificate claim which were the subject of evidence given by Mr Hagan, one of the treasury witnesses, which documents then, in the course of the proceedings were made available to Mr McKinnon outside the operation of the Freedom of Information Act.  Therefore, these documents are in evidence so they were documents that were the subject of the conclusive certificate, they were the subject of sworn evidence in support of the certificate but they were then released by the respondent during the course of the hearing ‑ ‑ ‑

HAYNE J:   What are we going to get out of examining these documents, Dr Griffiths, other than some colour?

MR GRIFFITHS:   To give you some idea of the – perhaps of some limited use, your Honour, but to indicate to you ‑ ‑ ‑

HAYNE J:   What use?

MR GRIFFITHS:   ‑ ‑ ‑ the need for particular caution in the way in which public servants use the section 36 exemption. I will not take up time, but I ask the Court to have a look at the documents in question. They are set out in appeal book 2 at pages 786 and following. The first documents, for example, are these First Home Owners’ Scheme documents. The material that was released is the material that you see at about point 8 of the page, then going over the page there is one sentence.

That material was, as I said, the subject of the Treasurer’s conclusive certificate.  He relied on grounds (a), (b), (d) and (g) in respect of that material.  Mr Hagan gave evidence in support of those grounds in respect of those documents and his evidence is in the confidential bundle so I simply give the Court the reference – it is in volume 3, page 622, at paragraphs 15 to 23 where Mr Hagan defends the Treasurer’s claim on those matters.

Your Honours, can I deal very quickly with a number of other points.  We disagree with what our learned friends have put about Justice Davies engaging in a balancing test.  He plainly did, in our respectful submission, in the fashion in which he addressed the arguments that were advanced by Mr Howard in favour of the documents being disclosed in the public interest. 

Can we also remind the Court that the Burchill Case to which my learned friend made reference is not a section 36 conclusive certificate case. It was a Cabinet exemption claim under section 34 which does not have a public interest element to it. It is purely a factual question of the proper objective characterisation of the document as being an exempt document.

KIRBY J:   Can I ask in relation to the documents you took us to at 789 and following, those large areas of blank page with the word “REDACTED” on it ‑ ‑ ‑

MR GRIFFITHS:   Yes, on grounds of irrelevancy, your Honour.

KIRBY J:   It is not, as it were, the white tippex gone through areas which are confidential and you cannot get a look at it?

MR GRIFFITHS:   No, withheld on the grounds of irrelevancy to the request, or redacted on the basis of irrelevancy to the request.

KIRBY J:   What does “redacted” mean?  Is this some parlance in this area, is it?

MR GRIFFITHS:   It means eliminated in a Stalinist type of fashion, your Honour.

KIRBY J:   I am glad they used the word “redacted”.

MR GRIFFITHS:   Two other points very quickly if I may.  The first is that reference was made to research papers being requested by judges.  I did not understand of course the Court to be suggesting that a court would be vulnerable to an FOI request in respect of such a matter.  Just for completion, could we remind the Court that section 5 of the Commonwealth Act deals specifically with the issue of the application of the Act to courts and its application is limited to courts insofar as administrative matters alone are concerned.

KIRBY J:   I realise that, but I was just trying to understand the attitude of those who might feel sensitive about getting early drafts, given that I know in my own case and in the case of judges preparing reasons, that you go through many, many drafts before you reach the end and they are often quite different at the end than they would have been at the beginning, including different in outcome and result.  One can understand the resistance to people getting early drafts in case they are then beaten up and presented as if they were the last word.

MR GRIFFITHS:   Yes.  Mr Tracey is going to hand up a copy of his researches on overseas comparables.  Could we remind the Court that in our supplementary materials behind tab 3 we have prepared a chart which focuses not offshore but onshore and summarises the position under both the Commonwealth and State and Territory Freedom of Information Acts concerning the availability of conclusive certificates and whether or not they are subject to review and, if so, by whom and on what grounds.

My learned friend also made reference to the X v Canada Federal Court case.  We deal with that in paragraph 13 of our reply.  I do not need to take the Court to that save to remind them, but that is where we do deal with.  Finally, may I hand up our lunchtime homework, if I can put it that way, in respect of our complaints about ‑ ‑ ‑

HAYNE J:   And then sit down very quickly.

MR GRIFFITHS:   In respect of our complaints about matters not taken into account and we have done so by way of reference to that group of documents, B.001 to B.010.  My learned friend has not had an opportunity to consider that document.  He may wish to have an opportunity to do so in writing at some point.  If the Court pleases.

GLEESON CJ:   Thank you, Dr Griffiths.

MR TRACEY:   If the Court pleases, it is unlikely, but may we have leave, should it be necessary, within seven days to put in a note on this document.

GLEESON CJ:   Yes, Mr Tracey.  Thank you.  We will reserve our decision in this matter and we will adjourn until 9.30 tomorrow in Canberra and 9.30 tomorrow in Sydney.

AT 3.39 PM THE MATTER WAS ADJOURNED